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June 15, 2004

More about the Pledge case

Here's a summary of Monday's Supreme Court decision that Michael Newdow lacks the legal standing to challenge the Elk Grove Unified School District's Pledge of Allegiance policy. As NSBA's press statement and yesterday's BoardBuzz item indicated, we think the reaction of Elk Grove's superintendent David W. Gordon sums things up well: "While we would have preferred that the Supreme Court had ruled on the merits—and settled it once and for all for our nation—we are pleased that we can continue with our Board policy to have teachers lead willing students in reciting the Pledge of Allegiance."

The decision on the standing issue is not insignificant for school boards. Schools do need clarity on how to handle situations where there are custodial issues and parents express conflicting wishes. The reality is that this is a much more common scenario confronting schools than are the glamorous but rare issues like disputes over the Pledge. And, as a general matter, there's certainly no shortage of people with legal standing to sue their schools. But we know what will be the hot question for most people:

Why doesn't this decision settle the issue?
The Rev. Barry Lynn of Americans United for Separation of Church and State accused the Court of "ducking this constitutional issue," which he said is "certain to come back in the future." He's probably right that we haven't seen the last of this controversy. But even though yesterday's decision turned on the standing issue, it offers some important hints for a future case.

Included in Justice John Paul Stevens' majority opinion is the following statement: "As its history illustrates, the Pledge of Allegiance evolved as a common public acknowledgement of the ideals that our flag symbolizes. Its recitation is a patriotic exercise designed to foster national unity and pride in those principles." Chief Justice Rehnquist also concluded in a concurring opinion that the Pledge is a patriotic ceremony and is not transformed into a religious one merely because it contains the descriptive words "under God."

Justice Sandra Day O'Connor joined the Chief Justice's concurrence, but her own separate concurrence is especially noteworthy. Justice O'Connor concluded that the Pledge's reference to God, like "In God We Trust" and "God save the United States and this honorable Court," constitutes what the courts call "ceremonial deism." These kinds of acts of ceremonial deism, Justice O'Connor wrote, "are simply not religious in character."

She provided a lengthier legal analysis, which outlined her approach to Establishment Clause cases like this one. A concurring opinion is not binding law. But given Justice O'Connor's pivotal role in so many close decisions, her opinion may be a crucial signal on the odds for the success of any future Pledge case.

Preserving "under God"?
Finally, this most recent round of news coverage once again suggests that it may be a lost cause to try to explain to the news media that this case was not about whether the words "under God" must be deleted or can remain in the Pledge. That issue was taken out of the Ninth Circuit's last ruling in the case. The question was not certified by the Supreme Court for its consideration.

The distinction is more than lawyerly quibbling over technicalities. Both the law and the politics are much thornier if the issue is "editing" the Pledge. School boards do not write or edit the Pledge, and the real issue considered by the Court was the Elk Grove board's policy. As we've explained before, focusing on the policy and on what really happens in the classroom changes the analysis. It makes it even clearer that, as several Justices indicated yesterday, the Pledge is not an unconstitutional religious affirmation, but a constitutional civic and patriotic exercise.

This school perspective is a whole lot less sexy for the news media than the loud recriminations of the culture warriors on both ends of the spectrum. We're used to that. But, sexy or not, we think it's right. We'll see how long it takes for it to be tested again.

Posted June 15, 2004 12:00 AM